Government Contracts: OFCCP Compensation Audits Might Change

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The OFCCP might make compensation audits more fair for government contractors.

Recent discussions inside the Office of Federal Contractor Compliance Programs (“OFCCP”) indicate that compensation audits of federal contractors might become more fair for employers.  On April 19, 2018, Bloomberg News released an article indicating that OFCCP was contemplating significant changes to its audit rules.  Here’s a link to the Bloomberg article: Bloomberg OFCCP Article.  The OFCCP conducts audits of government contracts and federal contractors to ensure that employers are complying with federal laws and regulations prohibiting pay discrimination.  Under the Obama Administration, the OFCCP issued Directive 307, which allows auditors to compare compensation of employees even if they perform different work.  For example, auditors might find discrimination by comparing the compensation of two “managers,” even though one manager works in accounting and the other in human resources.

Comparisons of dissimilar employees are generally not permitted in discrimination cases arising under Title VII of the Civil Rights Act of 1964.  Instead, an employee suing for pay discrimination must usually compare themselves to another employee doing the same work, in the same location, with the same supervisors.  Because of the discrepancies between OFCCP’s enforcement efforts and traditional employment law, the U.S. Chamber of Commerce released a report in late 2017 critical of the OFCCP.  It’s report, “OFCCP, Right Mission, Wrong Tactics” can be found here.

The Bloomberg article indicates that the OFCCP is about to scrap or significantly change Directive 307.  That’s good news for federal contractors, who need consistency in the law to succeed in business.  Unfortunately, the Bloomberg article caused some concern among civil rights groups, and an article from the Society for Human Resource Management (which can be found here) indicates the OFCCP’s plans may be delayed.  Even with the delays, the information coming from OFCCP is good news for government contractors, because it indicates a willingness by OFCCP to address employer concerns.

Title VII: Being a Jerk Is Not Discrimination

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Title VII does not protect employees from bosses or co-workers who are jerks

Employees frequently think that they should be able to sue under Title VII of the Civil Rights Act of 1964 because their boss, or a co-worker, is mean to them.  I frequently hear the complaint:  “I’m being harassed, and that’s illegal!”  In the employment law context, however, there is nothing illegal about being a jerk.  In fact, there is nothing illegal about harassing employees — unless that harassment is bad-enough and based upon a protected characteristic like race, sex or age.  Being a jerk generally does not violate any  employment laws.

At the outset, let’s be clear.  Sexual harassment, racial harassment or harassment based upon any other protected characteristic will get you sued.  But, even that harassment must be so severe and pervasive that it alters an employee’s terms and conditions of employment.  There is abundant case law holding that Title VII is not a general civility code.  It is not designed to make sure that people “get along” in the workplace.  Instead, Title VII is supposed to prevent discrimination at work.  Sometimes, there’s a fine line between behavior that’s boorish and behavior that will violate the law.  Some obvious examples of conduct that will get you sued, however, are repeated use of the “N” word toward African-American employees, and touching a female employee in a sensitive location.

An employee must suffer an “adverse employment action” to possess a claim under Title VII.  Such an action must have a tangible adverse effect on the plaintiff’s employment.  As a result, giving discriminatory job assignments, in many cases, won’t be illegal.  Similarly, just being mean to an employee, even if based on a protected characteristic, does not violate Title VII.  For example, last year, the Eleventh Circuit affirmed dismissal of a Title VII action filed against the Post Master General.  See Coles v. Post Master General, 711 Fed. Ap’x 890 (11th Cir. 2017).  In that case, a postal employee claimed she was subjected to age and race discrimination because:  her vehicle was searched at work; an investigation was conducted into her work absences; and, she was assigned “culling belt work” (an unfavorable assignment).  The Eleventh Circuit found that treatment was not an “adverse employment action” under Title VII.

The foregoing observations on the state of the law are not intended to encourage employers to be jerks to their employees.  Indeed, positive morale is a vital component of any workplace.  Moreover, sometimes a court will allow an employee to sue for “constructive discharge.”  A constructive discharge occurs when an employer makes an employee’s working conditions so intolerable that an employee is compelled to resign.  In short, if an employer is too much of a jerk, and the employer’s conduct is aimed at a protected characteristic, an employee may be able to sue — even if they resign.

 

Alabama Employers Need Effective Anti-Harassment Policies

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Many types of harassment are prohibited by Title VII. An effective policy prohibiting harassment can help employers avoid liability.

Almost 20 years ago, the United States Supreme Court provided employers with an important defense to harassment claims under Title VII of the Civil Rights Act of 1964.  Under that defense, even if impermissible conduct occurs in the workplace, an employer can avoid liability by maintaining an effective policy against harassment.  Even though two decades have passed, I still occasionally encounter an employer who has not adopted an anti-harassment policy.  A recent decision from a federal judge in Alabama demonstrates the wisdom of adopting such a policy.

In Garrett v. Tyco Fire Products, LP, No. 2:16-cv-00372-SGC, 2018 WL 1319060 (N.D. Ala. Mar. 14, 2018), Tyco was sued by six African-American employees for racial harassment.  Magistrate Judge Staci Cornelius conducted an extensive review of each employee’s claims, and found that three of them potentially were exposed to the types of severe and pervasive conduct that that are impermissible under Title VII, as well as another law, 42 U.S.C. § 1981.  They each heard, or were called, “boy” and the “n” word “constantly,” saw racial grafitti in Tyco’s bathroom and saw lightning bolts and other Nazi paraphernalia.

Nevertheless, Judge Cornelius found that Tyco was not liable, because of its effective anti-harassment policy.  Importantly, employers cannot just slap a policy on the books and expect to avoid liability.  Instead, the policy needs to be comprehensive, well-known to employees, vigorously enforced, and provide alternate avenues of complaint (so that an employee is not forced to complain to a harassing supervisor).  Tyco’s policy was effective because it did those things, and it was disseminated to all employees through orientation, training, publication in the employee handbook, and postings throughout Tyco’s facilities.  Despite that well-disseminated policy, none of the employees made a harassment complaint to Tyco.  And, because they failed to complain, their harassment claims were barred.

Judge Cornelius’s decision demonstrates that Alabama employers will benefit from adopting effective, well-disseminated anti-harassment policies.  Importantly, if an employee makes a complaint under such a policy, the employer is further required to diligently investigate any complaint and take “prompt remedial action” that is reasonably likely to prevent the misconduct from recurring.

 

 

Religious Objections to Work Shifts and Reasonable Accommodations

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Religious accommodations can require employers to make difficult decisions.

The Eleventh Circuit Court of Appeals issued an opinion on March 9, 2018 which provides guidance to employers on their duty to accommodate the religious beliefs of employees.  See Patterson v. Walgreen Co., No. 16-16923, 2018 WL 1224391 (11th Cir. Mar. 9, 2018).  Darrell Patterson is a Seventh Day Adventist, and his beliefs prohibit him from working during his Sabbath — sundown on Friday to sundown on Saturday.  He was hired by Walgreens as a customer care representative, and Walgreens initially accommodated his beliefs.

Patterson was promoted a number of times and became a training instructor.  The training classes he taught were regularly scheduled between Sunday and Thursday, but sometimes emergency trainings were needed on Friday nights or Saturdays.  In those circumstances, Walgreens allowed Patterson to swap shifts with other available trainers.  But, when Patterson could not find a replacement, he was disciplined.  In 2011, Walgreens scheduled Patterson for an emergency training on Saturday.  Patterson asked another training instructor to cover for him, but that trainer was not available.  Patterson did not ask several other employees about their availability to cover for him.

Patterson met with Walgreen’s Human Resources representative the next week.  That representative suggested that he return to a prior position as a customer care representative or look for another job at Walgreens that had a large employee pool from which Patterson could find employees willing to switch shifts.    Patterson refused unless he received a guarantee that he would not have to work on his Sabbath.  Walgreens terminated his employment because of his refusal to work on the Sabbath and his refusal to look for another position with more likely availability.

The analysis of religious accommodation cases is similar to other discrimination cases under Title VII of the Civil Rights Act of 1964.  An employee establishes a prima facie case of discrimination by showing:  (1) he had a bona fide religious belief that conflicted with an employment requirement; (2) he informed his employer of that belief; and, (3) he was discharged for failing to comply with the conflicting employment requirement.  If the employee establishes a prima facie case, the burden shifts to the employer to demonstrate that it either offered the employee a reasonable accommodation or could not do so without undue hardship.

The Eleventh Circuit’s Patterson decision focused on the reasonable accommodation offered by Walgreens.  The court found that “[a]n employer may be able to satisfy its obligations involving an employee’s Sabbath observance by allowing the employee to swap shifts with other employees, or by encouraging the employee to obtain other employment within the company that will make it easier for the employee to swap shifts and offering to help him find another position.”  Patterson, 2017 WL 1224391 at *3.  Importantly, Walgreens was only required to make shift swapping available  — if Patterson could find another employee to swap.  Walgreens was not required to guarantee a shift swap.  “Walgreens was not required to ensure that Patterson was able to swap his shift, nor was it required to order another employee to work in his place.”  Id. at *4.

The Court further found that Walgreens’ offer to allow a transfer to a customer care representative position was also a reasonable accommodation, and that Patterson “had a duty to make a good faith attempt to accommodate his religious needs through the means offered by Walgreens.”  Id.

The Patterson decision is useful for Alabama employers.  It firmly establishes that the duty to accommodate an employee’s Sabbath observance is not unlimited.  In most circumstances, offering the employee the ability to swap shifts should suffice.  Nevertheless, every situation is unique and employers should proceed cautiously if they are contemplating taking an employment action based upon a Sabbath observance or other religious belief.

Use of the Term “Boy” Creates Race Discrimination Problems

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Depending on context, calling an African-American employee “boy” might be discriminatory.

When dealing with workplace conduct, context is everything.  Recently, the Eleventh Circuit affirmed dismissal of a race-based retaliation claim, even though a supervisor called an African-American employee “boy.”

At the outset, let me stress that employees should be strongly discouraged from using the term “boy” in the workplace.  This term has created a very difficult area of the law.   “[T]he use of the word ‘boy,’ when directed by a non–African American to an African–American, is potentially racially hostile.”  Craig v. Alabama Power Co.,   2010 WL 11561855  (N.D. Ala. Sep. 21, 2010).  Even so, the Supreme Court has explained that a supervisor referring to an African–American plaintiff as “boy” “will not always be evidence of racial animus” and that such factors as “context, inflection, tone of voice, local custom, and historical usage” are consulted to assess whether it is evidence of discriminatory animus in a particular case. Ash v. Tyson Foods, Inc., 546 U.S. 454, 456, 126 S.Ct. 1195, 163 L.Ed.2d 1053 (2006).

The importance of context is evident in the Eleventh Circuit’s recent decision in Bell v. City of Auburn, No. 17-11597, 2018 WL 388484 (11th Cir. Jan. 12, 2018).  In Bell, Shawn Bell claimed that the was terminated in retaliation for complaining to human resources that his supervisor called him “boy.”  But, Mr. Bell was required to give deposition testimony as part of his law suit.  During that deposition, Mr. Bell said that “the comment discredited his manhood, that he was a man, and that he did not think a man should talk to another man like that.”  When asked if the supervisor was “being racial” when he called him boy, Bell answered:  “No.”

To succeed on a retaliation claim, Mr. Bell was required to show that he subjectively believed that he was reporting racial discrimination when he complained to human resources.  But, the Eleventh Circuit found that Mr. Bell’s own testimony demonstrated that he did not possess such a subjective belief.  Instead of believing that the term insulted his race, Mr. Bell believed it insulted his manhood.

The City of Auburn may have dodged a bullet in the Bell case.  To avoid these types of issues, I strongly recommend that employers discourage the use of the term “boy” in the workplace.

 

 

Employees Suing For Discrimination Can’t Ignore Bad Comparators

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Employees suing for discrimination can’t focus solely on comparator employees who were treated better. Instead, if comparator employees were also treated worse, there may be no viable claim for discrimination

United States District Court Judge Madeline Haikala recently dismissed a discrimination claim because the employee failed to show that the majority of comparators (i.e., similarly situated co-employees outside the protected class) were treated better than him.  See Burton v. Miles College, No. 2:14-CV-02471-MHH, 2017 WL 6336327 (N.D. Ala. Dec. 12, 2017).  Abraham Burton was employed by Miles College as an assistant dormitory director.  He sued the college for gender discrimination and age discrimination, and claimed that Miles paid women and younger employees more than him.

In most employment discrimination cases, employees like Mr. Burton try to use circumstantial evidence to prove discrimination.  Employees can sometimes succeed in a circumstantial case by offering evidence of “comparators” — similarly situated individuals of the opposite sex or similarly situated, substantially younger employees.  Comparators must be “similarly situated in all relevant respects.”  That is, they must work in the same position with the same experience and same supervisors.  Usually, if an employee like Mr. Burton identified a comparator who was paid more favorably, a judge would find an inference that the difference in treatment was the result of discrimination.

Mr. Burton pointed to two comparators — a younger assistant dormitory director and a female assistant dormitory director — who were paid more than him.  But, Judge Haikala refused to rely solely upon those comparators when determining whether discrimination occurred.  Instead, she relied upon a case from the Third Circuit Court of Appeals to hold that “[a] plaintiff may not pick from a valid set of comparators only those who allegedly were treated more favorably, ‘and completely ignore a significant group of comparators who were treated equally or less favorably than [he].'”  Burton, 2017 WL 6336327  at *3 (quoting Simpson v. Kay Jewelers, 142 F.3d 639, 646-47 (3d Cir. 1998).

In this case, Miles College paid one female assistant dormitory director better than Mr. Burton, but paid five other female assistant dormitory directors worse than Mr. Burton.  Similarly, the college paid one younger assistant dormitory director better than Mr. Buton, but also paid three substantially younger assistant dormitory directors better.  Thus, Judge Haikala concluded:  “These circumstances do not give rise to an inference of discrimination ….”

It will be interesting to see if other judges in Alabama adopt Judge Haikala’s rationale.  For the time being, however, she has provided employers with an additional way to fight employment discrimination claims.

 

Supreme Court Won’t Review 11th Circuit LGBT Decision

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The United States Supreme Court Declined to Hear an LGBT Discrimination Case

This morning, the United States Supreme Court announced that it would not review a decision from the Eleventh Circuit Court of Appeals, which held that sexual orientation is not protected by Title VII of the Civil Rights Act of 1964.

Jameka Evans is lesbian.  After she was terminated from her position as a security guard, she filed a pro se (without a lawyer) lawsuit claiming that she was terminated because of her sexual orientation.  Her case drew the attention of the Lambda Legal Defense and Education Fund and the United States Equal Employment Opportunity Commission, which helped her to argue the case as amicus curiae (friends of the court).  A panel of the Eleventh Circuit ruled that Title VII of the Civil Rights Act does not protect against sexual orientation discrimination.  But, consistent with numerous prior decisions, the Court also held that Ms. Evans could sue for discrimination based upon “gender nonconformity.”

Lambda Legal asked the Supreme Court to review the Eleventh Circuit’s decision, but the Court declined to do so this morning.  Here’s an article from The Hill discussing the decision:  Supreme Court Refuses to Hear LGBT Workplace Discrimination Case.

The Evans decision is consistent with a long line of precedent in the Eleventh Circuit.  In fact, I previously discussed this issue here:  LGBT Issues In the Workplace.  Nevertheless, there may be a trend developing in other courts to protect sexual orientation under Title VII.  In April, the Seventh Circuit Court of Appeals ruled that Title VII applies to such claims.  Those types of conflicts between Circuit Courts of Appeals often lead to decisions by the Supreme Court.  Thus, it is possible that the Supreme Court will be asked to review this issue again in the future.

Halloween Costume or Transgender Presentation?

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An employee’s Halloween “costume” might actually be their attempt to present at work as transgender person.

Happy Halloween!  To celebrate the occasion, I did a little research on the intersection of employment law and Halloween in the Eleventh Circuit, and decided to discuss Glenn v. Bumbry, 663 F.3d 1312 (11th Cir. 2011).  Glenn involves a transgender employee who was born as a man, but presented at work as a woman on Halloween.

Glenn was hired by the Georgia General Assembly’s Office of Legislative Counsel (“OLC”) in 2005.  When hired, Glenn was presenting as a man, but had been diagnosed with Gender Identity Disorder.  In 2006, Glenn informed her direct supervisor that she was transsexual and in the process of becoming a woman.  On Halloween, OLC employees were permitted to attend work wearing costumes.  Thus, Glenn came to work presenting as a woman.  The head of the OLC, Sewell Brumby, told Glenn that her appearance was not appropriate and told her to leave the office.  “Brumby stated that ‘it’s unsettling to think of someone dressed in women’s clothing with male sexual organs inside that clothing,’ and that a male in women’s clothing is ‘unnatural.'”  In 2007, Glenn informed her supervisor that she would begin coming to work as a woman and was also changing her name.  Brumby then terminated Glenn because he viewed the gender transition as “inappropriate,” “disruptive,” a “moral issue,” and “it would make Glenn’s coworkers uncomfortable.”

Glenn sued for sex discrimination and won at the trial level.  Brumby appealed to the Eleventh Circuit Court of Appeals.  In Glenn v. Bumbry, the Eleventh Circuit issued its first opinion finding that discrimination against a transgender person is impermissible.  The Court found that “discrimination against a transgender individual because of her gender-nonconformity is sex discrimination, whether it’s described as being on the basis of sex or gender.”

I previously discussed discrimination based upon gender stereotypes here.  So, if your office permits employees to dress-up for Halloween, and one of your employees shows up dressed as a member of the opposite sex, they may be protected by Title VII of the Civil Rights Act of 1964.

Boss Have It Out For You? Too Bad, Says 11th Circuit

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Even if the boss has it out for you, it is very difficult to win a gender discrimination law suit.

Does your boss have it out for you?  The opening sentences of a recent Eleventh Circuit opinion summarize a dilemma confronting many employers:

George Dagnesses believed his boss had it out for him.  She belittled him and accosted him, and regularly made negative remarks about men.  When his boss eventually fired him, Dagnesses sued his former employer … for sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964 ….

Dagnesses v. Target Media Partners, No. 16-17802, 2017 WL 4329719 (11th Cir. Sep. 29, 2017).

Mr. Dagnesses lost his law suit, even though he produced substantial evidence that his supervisor, Linda Coffman, was hostile towards him.  She repeatedly belittled and second-guessed him, and on one occasion poked him the chest.  Another female supervisor testified that Coffman’s treatment of Dagnesses made her uncomforatable, but did not believe Coffman disliked Dagnesses because he was a man.

Coffman terminated Dagnesses employment and provided evidence that her decision was based upon insubordination, inappropriate communication, failure to follow instructions and poor attitude.  Dagnesses’ discrimination claim failed because he could not identify any similarly situated female employees, who engaged in similar misconduct, and were treated better than him.

The Eleventh Circuit’s analysis included one interesting bit of dicta that employees might attempt to use in the future.  Dagnesses attempted to compare himself to a female employee who was “discharged due to dissatisfaction with the quality of her work.”  The Court distinguished that female employee by saying that “quality of work” is a “lesser degree of misconduct” than “insubordination, inappropriate communication, failure to follow instructions and poor attitude.”  If a future employer fires an employee for “quality of work,” but retains employees with “bad attitudes,” I would expect the employee to argue that they were terminated even though they engaged in a “lesser degree of misconduct” than employees who were retained.

George Dagnesses’ boss may have had it out for him.  But, Dagnesses failed to prove that the reason she had it out for him was his gender.  In short, a boss can treat employees poorly, but won’t violate Title VII unless the reason for his/her treatment is a bias against race, gender or another protected class.

 

Employee Can’t Sue for Getting the “Silent Treatment”

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An employee receiving the “silent treatment” is not subjected to actionable discrimination

Your Mom probably told you:  “If you can’t say something nice, say nothing at all.”  In the workplace, this is sometimes great advice.  Rather than unleashing your true feelings on a co-worker, you can elect to ignore him.  Nevertheless, you can’t make everybody happy.  So, one employee who received the “silent treatment” from co-workers attempted to claim that she was being discriminated against.  The Eleventh Circuit Court of Appeals recently rejected that claim in Jones v. Allstate Ins. Co., No. 16-15628, 2017 WL 3887790 (11th Cir. Sep. 6, 2017).

Jamilia Jones’s employment with Allstate Insurance Company was complicated.  She complained that she was sexually harassed by her supervisor, and, after an investigation, Allstate fired that supervisor on May 8, 2012.  She then took disability leave in June and July 2012.   Ms. Jones testified that, upon her return to work, co-workers would not talk to her for fear of losing their jobs.  Those who would talk with her would only do so with a witness present. She resigned her employment on September 10, 2012, and later claimed that she was forced to resign because she was treated so poorly at work.  In other words, she claimed that she was “constructively discharged.”

To succeed on a claim of constructive discharge, an employee must show that her working conditions were so intolerable that a reasonable person in her position would be compelled to resign.  But, the Eleventh Circuit found that the “silent treatment” simply did not amount to intolerable working conditions.   As a result, the Court affirmed dismissal of Ms. Jones’s claim for constructive discharge — once again proving that Mom is always right.